Probate When the Will Has Handwritten Changes or Crossed-Out Words

You have found the original will and something is off. A name is crossed out, a number has been written over, or there are notes in the margin in a different pen. As executor, you need to know how this affects the probate application.

This article explains the evidence Ontario's probate process generally asks for when a will has been altered or marked, and how to prepare. It does not say which changes count and which do not. That depends on the facts of your will and is worth confirming with a lawyer.

Why alterations matter to the court

The court is being asked to grant authority based on the will. If the document looks different from when it was signed, the judge needs to understand what the document looked like and when and how it came to look that way. The condition of the will is evidence.

Ontario's forms deal with this directly. Form 74E is the Affidavit of Condition of Will or Codicil, and it is used if the will was altered or marked in some way. It is listed among the supporting affidavits in the standard probate package.

What the affidavit of condition is for

An affidavit of condition is a sworn statement about the physical state of the will. The person swearing it describes what they see and what they know about it. Who should swear it, and what it should say about each mark, is a point to settle with a lawyer, because the wording affects how the court reads the document.

The original will must be attached to the affidavit as an exhibit. Even when the application is emailed, the original will must still be filed on paper at the court location where the application was filed.

If the will is both handwritten and marked up, more than one affidavit may be relevant. A lawyer can tell you which combination fits your situation.

The rest of the application

The affidavit sits within the usual package. That includes the following.

• The original will and any codicil.
• Proof of death, such as a death certificate or a court order.
• Form 74A, the application, signed before a Commissioner for Taking Affidavits.
• Form 74B affidavit of service or 74B.1 lawyer's certificate of service.
• Form 74C, the draft certificate.

For estates valued at $150,000 or less, the small estate process applies, using Forms 74.1A, 74.1B and 74.1C, and Form 74E is still the affidavit used if the will was altered or marked. Otherwise you apply for a Certificate of Appointment of Estate Trustee.

Who must be told, and what can slow things down

Before filing, send a copy of the signed application to each beneficiary, meaning everyone entitled to a share, to their last known address. People who would lose out because of an alteration are the ones most likely to object, so accurate notice matters. For a small estate, the copy must go out at least 30 days before filing.

If a minor has an interest, the Office of the Children's Lawyer must be served, and the notice should include a copy of the deceased's entire last will. If a beneficiary is an incapable adult, the Public Guardian and Trustee may also need to be served.

Ontario says applications are typically processed within 15 business days, longer if documents are missing or a judge must decide an issue. A refusal comes as Form 74O with reasons. If someone files an objection on Form 75.1, the applicant must serve Form 75.3 on the objector.

What to do next

• Do not erase, cross out, fix or add anything to the original, and do not remove any staples or clips.
• Photograph each page as you found it, and write down where and when the will was found.
• Note who has handled the will since the death.
• Look for any other will, since court staff check for a more recent one.
• List every beneficiary, including any minors, and their last known addresses.
• Ask a lawyer to review the original before you swear any affidavit, so the description of the alterations is accurate.

Once the certificate is issued, the Estate Information Return is due within 180 calendar days, even if no tax is payable.

Frequently asked questions